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The New York Times

Supreme Court Orders New Look at Death Row Case

Adam Liptak

Troy Davis, shown at his 1991 trial, faces death in Georgia. (Savannah Morning News, via Associated Press)

WASHINGTON — The Supreme Court on Monday ordered
a federal trial court in Georgia to consider the case of Troy Davis,
who is on death row in state prison there for the 1989 murder of an
off-duty police officer. The case has attracted international
attention, and 27 former prosecutors and judges had filed a brief supporting Mr. Davis.

Seven of the witnesses against Mr. Davis have recanted, and several
people have implicated the prosecution’s main witness as the actual
killer of the officer, Mark MacPhail.

The Supreme Court’s decision was unsigned, only a paragraph long and
in a number of respects highly unusual. It instructed the trial court
to “receive testimony and make findings of fact” about whether new
evidence clearly established Mr. Davis’s innocence. Justice Sonia Sotomayor, who joined the court this month, did not participate.

The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia
about Supreme Court procedure, the reach of a federal law meant to
limit death row appeals and the proper treatment of claims of innocence.

“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader GinsburgStephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.” and

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

He went on to say that the federal courts would be powerless to
assist Mr. Davis even if he could categorically establish his innocence.

“This court has never held,” Justice
Scalia wrote, “that the Constitution forbids the execution of a
convicted defendant who had a full and fair trial but is later able to
convince a habeas court that he is ‘actually’ innocent.”

That question is indeed unresolved. In a 1993 decision, Herrera v. Collins, Chief Justice William H. Rehnquist
wrote for the court that “we may assume, for the sake of argument in
deciding this case, that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional and warrant federal habeas
relief.” But the showing of supposed innocence in that case, Chief
Justice Rehnquist said, fell short.

Mr. Davis reached the Supreme Court by an unusually direct route, filing an original writ of habeas corpus
with the court rather than appealing from a lower-court ruling. The
court has granted such petitions just a handful of times in the last
century, and Justice Scalia said the court had not taken the
“extraordinary step” of ordering a federal trial court to adjudicate
such a petition from a state prisoner in nearly 50 years.

The move is especially troubling, Justice Scalia wrote, because
“every judicial and executive body that has examined petitioner’s stale
claim of innocence has been unpersuaded.”

In April, for instance, a divided three-judge panel of the federal appeals court in Atlanta refused
to allow Mr. Davis to file a habeas corpus petition, invoking the
Antiterrorism and Effective Death Penalty Act, a 1996 law that limits
death penalty appeals.

“We cannot honestly say,” the majority said in an unsigned opinion,
“that Davis can establish by clear and convincing evidence that a jury
would not have found him guilty of Officer MacPhail’s murder” in light
of all the currently available evidence.

Judge Rosemary Barkett, dissenting from the appeals court’s
decision, complained of the 1996 law’s “thicket of procedural

In addition to his other objections to Monday’s decision by the
Supreme Court, Justice Scalia said it conflicted with the 1996 law.

But Justice Stevens said the law might not apply to habeas petitions
filed directly with the Supreme Court or to inmates who can establish
their innocence. Failing that, he continued, the law may be

“It ‘would be an atrocious violation of our Constitution and the
principles on which it is based’ to execute an innocent person,”
Justice Stevens wrote, quoting Judge Barkett’s dissent.

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